Published today in The Elephant: FREE,FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant by Ken Flottman.
“Can John Kerry help stop Kenya from slipping into Post-Election Violence Again?“, Newsweek, 10 Aug 2017:
Beyond the “Western patrician savior” headline:
. . . .
“I know what it’s like to lose an election. I lost by one state the presidency of the United States, and I had a lot of reasons to complain about what happened in Ohio or in other states. But you gotta get over it and move on,” said Kerry Thursday at a press conference in Nairobi, where he has headed up the election observation mission from the Carter Center. Kerry was likely referencing issues with the voting system in Ohio that led to a recount and reduced margin of victory for Bush.
The result—and perhaps more significantly, the aftermath—of Kenya’s presidential election is not yet clear. With almost 99 percent of the votes counted, incumbent Uhuru Kenyatta is in front with 54 percent of the vote, ahead of opposition leader Raila Odinga at 45 percent. Kenya’s electoral commission has said the result will be confirmed on Friday.
But Odinga has signaled he will not accept the result quietly. Odinga stated on Thursday that unknown figures had hacked into the electronic systems of the electoral commission—using the identity of Chris Msando, the commission’s IT chief who was tortured and murdered less than two weeks before the vote—and swayed the vote in favor of Kenyatta. Odinga has called for calm but has also not ruled out summoning his supporters to the streets.
Such a move would have a dreadful familiarity in Kenya. After the 2007 election, which Odinga lost to incumbent Mwai Kibaki amid allegations of rigging, supporters of both candidates clashed over several months in an ethnically charged conflict that left more than 1,000 people dead.
Kerry has led the Carter Center’s observation mission in Kenya, which saw observers deployed at more than 400 polling stations across the country, as well as 36 tallying centers. The center said in a preliminary statement on Thursday that despite some problems in the transmission of results from polling stations to tallying centers, the vote had been conducted in a peaceful and calm atmosphere. It urged candidates to wait for the official results before commenting and to “use established legal channels” to resolve any disputes and “ensure that their supporters remain calm” before and after the results have been confirmed.
Kerry himself said the vote appeared to have proceeded in a free and fair manner. “The process that was put in place is proving its value thus far,” he said. “Kenya has made a remarkable statement to Africa and the world about its democracy and the character of that democracy. Don’t let anybody besmirch that.
Former President Barack Obama also has urged Kenyans and their leaders to reject “tribal and ethnic hatred” and to “work together no matter what the outcome.” (emphasis added)
Facile comparison to very dissimilar 2007 situation (see my The Debacle of 2007 in The Elephant here.) Exaggerated time period for that violence ten years ago (most of the violence was within one month of the election and the settlement was reached at the end of the second month). No mention that following new the constitution in 2010 as a result of the 2008 settlement, the Odinga v Uhuru dispute of 2013 resulted in no widespread violence and much smaller numbers of opposition supporters killed by State for protesting. No mention that the country in August 2008 was basically locked down by a massive and oppressive state security deployment.
No substantive focus on the main electoral problem: failure of results transmission system, as in 2013 (and mirroring 2007) yet bare assertion that 99 percent of vote counted.
Advocacy by Kerry beyond written statement of his Carter Center Mission that the election appeared to meet standards and to achieve the (Western) goal of an African success story and “Don’t let anybody besmirch that”. Etc.
A worthwhile 45 minute discussion on the status of the Kenyan election in the wake of the Supreme Court ruling including particularly the role of the election observers:
France 24 Debate – “Kenya Back to the Polls: Landmark Ruling, Renewed Uncertainty”
Dutch MEP, Alliance of Liberals and Democrats
Editor in Chief, The Africa Report
Writer and political analyst
Senior fellow at CNRS, Horn of Africa Specialist
And here from Quartz Africa: “Kenya Elections 2017 – Role of International Election Observers under scrutiny after Kenya’s presidential election annulment.”
Maina Kiai in his Saturday Nation column submitted before the Supreme Court announced its ruling annulling the election had this to say:
And it has been disappointing to see international observers — some domiciled in Kenya and some from outside — play that same game. Is this because they don’t think we deserve better?
Or is this guilt about the waste of millions of dollars spent on the IEBC? Or is it because the election result of August 10 is exactly what these observers wanted?
If it is the latter, why on earth do we ever have elections in the first place? International observers — aside from the EU Observation Mission (not the EU in Kenya) — set a new low for what it means to do elections observations.
Discussing Kenyan elections can get tense, even among friends who are not Kenyans and try to be relatively dispassionately analytical. I have copied here one of my emails from an ongoing exchange in late August during the pendency of the Presidential Petition in the Supreme Court. My friend with whom I was corresponding is a Westerner who knows far more about Kenya (and lots of other relevant things) than I do and is someone I greatly respect (he is also a layman as far the legal profession goes). My friend was much more sanguine than I about the IEBC’s implementation and use of the KIEMS Results Transmission System, both in terms of facts and law. This explains how I saw things (and still do):
Uploading an alleged Form 34A offline after the election and reporting of results reflects a failure of the use of the RTS by its terms as consistently represented by IEBC and IFES until well after the election.
It is simply not the same thing at all in my opinion.
Even ELOGs sample in their PVT found 13.5% of Polling Stations did not publicly post Form 34A. If it wasn’t scanned and transmitted in real time, or at least scanned with delayed transmission upon being moved into a coverage area contemporaneously, and it also wasn’t publicly posted, then it cannot credibly treated as if it was reliable without explanation and evidence.
Your figure of 29,000 and the IEBC tweet claiming all but just over 1000 leaves a huge gap in a very short time period. (Further, I understand you to refer to some “backlog in uploading them” which apparently refers to something other than KIEMS transmission, so I am not sure at all that I am really understanding your argument.)
I also disagree with your characterization of “clear rules” of Kenyan election law implementing the Maina Kiai court decision against the IEBC. IFES advised to the contrary in their last pre-election publication on the process that I am aware of, the July 20 FAQ that also explained how KIEMS was to work.
People may have gambled that Chebukati could use the Court of Appeals ruling to announce on day 3 of 7 “final results” from most but not all alleged Form 34Bs without the 34As having been demonstrably transmitted to the Constituencies to generate the Form 34Bs. This tactic might very well win the Supreme Court of Kenya, legitimately or illegitimately, but I don’t find it persuasive myself, nor do I find that provides any justification for the assertive lack of basic transparency.
Kenyan lawyer Nelson Havi’s piece in The Elephant from about the same time gives a good summary of the issues in the Presidential Petition and the Petitiiners basic case: “KENYA ON TRIAL: Truth, Justice and the Supreme Court.”
Lots of good journalism out today, but this story from Peter Fabricus in my evening Daily Maverick Weekend Thing strikes me as hitting many of the right notes: “Kenya’s courts step up to electoral plate.”
One of the most important lessons from today is how cowed Kenya’s media really is by the Government. This decision did not have to come as quite such a suprise if Kenya’s media had felt free–or been brave enough–to just cover the polling stations and constituency tally centres. But we went through this in 2007 (when results were broadcast then taken down), and 2013 when self-censorship was the order of the day.
Today, Kenya took a big step forward on the rule of law — a sign that perhaps the press can become in the future in fact as free as the Constitution provides and the West pretends.
For Kenyan must reads, start with Nanjala Nyabola, “Why I’m proud to be an African today,” at IRINnews.com.
“IEBC’s high-tech system to guard against ballot stuffing” The Standard July 22, 2017
The Independent Electoral and Boundaries Commission (IEBC) has assured that the integrity of the August 8 election has been guaranteed through tamper-proof technology.
The Kenya Integrated Elections Management Systems (KIEMS) has unique features that will make double voting, ballot stuffing, and irreconcilable voting patterns impossible. IEBC is already preparing to deploy 45,000 KIEMS kits to be used in all the 40,883 polling stations across the country.
Every polling station has been allocated a Kit with a maximum number of 700 voters depending on the size of the polling centre. By implication, voters in a polling station cannot exceed the allocated number.
The KIEMS technology has two main functions in this election. The first is biometric identification of voters on the election day and results transmission after counting the votes.
The Commission has made it mandatory for all voters to be identified biometrically to close the doors for possibility of resurrection of dead voters.
IEBC Chief executive officer Ezra Chiloba said the Commission has invested heavily in technology and can guarantee successful transmission of election results.
“We have no choice really. The law already demands of us to electronically transmit presidential results from the polling station to the tallying centres,” he said.
After counting of results, the presiding officers in the presence of party agents are expected to type the total number of votes garnered by each candidate into the kit.
The kit aggregates the results automatically and the total number of votes cast for all the candidates is recorded. In cases where the number of voters exceeds the total number of registered voters, the kits shall automatically reject the results. This measure, according to the Commission, effectively makes ballot stuffing impossible.
As an additional measure to guarantee the integrity of elections results, the presiding officer shall scan Form 34A using the KIEMS kit. The Form 34A is signed by both the presiding officer and party agents. Once scanned, the presiding officer shall, together with the text results, send the same to the national tallying centre and constituency tallying centres.
The kit shall equally report turnout trends periodically throughout the day. With this kind of monitoring, the Commission says, ability to identify abnormal voting patterns is guaranteed.
At the end of the voting, said Mr Chiloba, the presiding officers in the presence of party agents are required to reconcile the number of voters recorded by KIEMS as having voted and the number of ballot papers issued.
“We have two procedures that minimise the risk of ballot stuffing. One, the voter turnout as recorded by KIEMS. Two, the ballot papers reconciliation that happens at the end of voting. The number of ballots papers issued and the records of voter turnout as registered by KIEMS should be able to reconcile,” he said.
The Commission contends that once the presiding officer has pressed the “Submit” button, the results cannot be changed by anyone.
Using an encrypted format, the results shall then be transmitted to the tallying centres through a secure network in real-time. The public will be able to view the results online. Similarly, Media will have a dedicated connection to access real-time results as well.
According to ICT sources within the commission, the KIEMS have a unique in-built audit trail. The in-build audit trail enables the commission to collect all the kits and to retrieve records from the SD cards for any analysis at the end of voting. This in-built accountability tools implies that the process of voting can be subjected to objective scrutiny at any point in time after voting.
. . . .
Clearly, much of what Chiloba and the IEBC described here just over two weeks before the election did not actually happen after the votes were cast and counted on election day.
Why? Well, much of the explanation likely rests on the new information disclosed in the Registrar’s reports on the Forms 34A and Forms 34B and the IEBC ICT review in the Supreme Court litigation. Other things were going on within the process than described.
The voting and counting, as I have previously noted, is the same this year as in the past. The voter register remained messy again with likely more than one million dead voters and plenty of ineligibles, and was not fixed and locked down as required. From outside appearances so far, however, the EVID system seems to have substantially worked this time which may have been a big improvement from 2007 and 2013 in limiting in person voting by ineligibles.
The RTS system which was to transmit from a unique registered and logged-in KIEMS device for each of the polling stations a scanned image of the finalized executed Form 34A simultaneously to the various tally centres, either was substantially misused or failed to work as advertised and/or some combination of the two. The Jubilee majority in Parliament early this year, coincident with the turnover from the Hassan-chaired IEBC to the Chebukati-chaired IEBC passed over opposition objection the option of allowing a complementary substitute for the electronic system. As far as I can tell the IEBC did not actually plan and establish such an alternative system, nor certainly did they effectuate it in any comprehensive, demonstrable, traceable way.
Nevertheless, rather than take the seven days alloted by law, Chebukati announced alleged final Presidential results roughly 72 hours after poll closing.
Is this “close enough for horseshoes and Kenyans” or is more required to successfully conduct and conclude a presidential election in Kenya in 2017?
Update: my email to a friend regarding the Court-ordered review of IEBC presidential election data:
I haven’t finished reviewing the Registrars report in detail, but it seems clear to me that the IEBC declined to provide, as directly ordered by the Court, the evidence that would verify or falsify alleged transmittal of scanned Forms 34A by KIEMS sets from Polling Stations to Tally Centres (Constituency, Cty, Nat’l).
Whatever the Court decides to do about the on the ruling petition as a whole, allowing the IEBC to flex its muscle over the Supreme Court openly in this way would probably pretty well tell us where things are headed on rule of law issues over the foreseeable future and whether there will be a serious challenge to Ruto in 2022-32.
This is very basic stuff. Surely one of the minimum steps required for transparency in the administration of Kenya’s election.
And who in good faith can be against that?
I will have more to say about Kenya’s 2017 election eventually, after I finally get the public records I am due from USAID from my 2015 request regarding our assistance in the administration of the 2013 election.
[To be direct I have heard contradictory things–all hearsay–about what role the U.S. did or did not play in the KIEMS acquisition. I just do not know. Likewise the role of other donors.]
[UPDATE: Good news! U.S. Ambassador Robert Godec spoke yesterday at the annual National Conference of the Law Society of Kenya. The text of his remarks is here. Based on his remarks about transparency and the rule of law, I’m sure we will step up and do the right thing here.]
On my end I had my periodic status call today on my 2015 FOIA request to USAID about records relating to our support for the IEBC in 2013, including the failed Results Transmission System. Nothing new since April.
This is part of what I wrote July 3:
According to the EU and Carter Center election observation missions from the 2007 and 2013 elections, perhaps one-quarter to one-third of election officials at individual polling stations did not post the Form 34 showing the presidential vote count as required, so there has been ample room in each of these elections for numbers to change between the count of ballots and sealing of the ballot box at the polling station and the reported “tally” by which the president was named in Nairobi.
Unfortunately, a fair understanding of what happened in 2013 gets worse, in that it turns out that it would surely seem that the IEBC and the donors should have know ahead of time that the electronic reporting system was not going to work–but elected to project what must have been false confidence, followed by “surprise” at its failure. The president of IFES testified to the U.S. Congress in 2013 after the election that the failure was caused by a botched procurement. What was unsaid was that this was not just a procurement failure by the IEBC which IFES would have been expected to know about from its role as “embedded” within the IEBC to provide technical assistance, but that this was apparently also a botched United States government procurement from USAID through IFES, from what I eventually learned recently from my 2015 FOIA request as discussed in my post here from April:
“Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows US paid for failed 2013 “Results Transmission System”
From the Kenya Election and Political Process Strengthening (KEPPS) Program from USAID for the last Kenyan election:
“Considering the role that results transmission played in the 2007 election violence, IFES will build on its recent work with Kenya’s results transmission system to further enhance it and ensure its sustainability. IFES will ensure this system is fully installed, tested and operational for the 2012 election. Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.”
[p.28 of the Kenya Election and Political Process Strengthening 2012 Program – Cooperative Agreement between USAID and CEPPS (coalition of NDI, IFES and IRI)]
This USAID Agreement with the consortium of IFES, NDI and IRI makes up the first 236 pages of what I was told were approximately 1800 pages of documents and attachments provided by the USAID Mission in Kenya to the Washington FOIA office by January 2016 in response to my FOIA request of October 2015.
Unfortunately, I have still not gotten any of the rest of these pages covering contract files and correspondence, as well as USAID transactions with Smith & Ouzman, Ltd., the British firm that was convicted of bribing Kenyan election and education officials to buy their products in the infamous “Chickengate” scandal.
In spite of persistent follow up over these many months, I don’t have any further information as to whether I am likely to get more of these documents released in time for the new election (under the current Kenya Electoral Assistance Program awarded to IFES last year).
The 2017 Kenyan Supreme Court petitions are under a final seven day deadline of today. [Update: NASA has filed a challenge Friday night in Nairobi, to my understanding joined by The Thirdway Alliance. Do not know of others.]